Protected Conversations

Negotiating a settlement agreement will typically take place off the record, on a “without prejudice” basis. However, the ‘without prejudice’ doctrine only applies if there is an existing dispute between the employer and employee and the discussions are a genuine attempt to resolve that existing dispute

One way around the requirement for an existing dispute is for the parties to have “a protected conversation” with a view to ending the employee’s employment. Such conversations can be protected from the eyes of an Employment Tribunal in the event of a subsequent claim if they are conducted in accordance with the provisions of s.111A of the Employment Rights Act.

A word of warning: This protection applies to claims for ordinary unfair dismissal only. Such conversations will be admissible (even if expressed to be protected under s111) in claims of discrimination, automatic unfair dismissal, unlawful detriment, or breach of contract. Protected conversations should therefore be used carefully, and not used when it comes to dealing with employees who may have potential claims aside from unfair dismissal and / or have raised grievances or complaints for unfair or bullying treatment.

For a conversation to be protected, there must not be any improper behaviour during the negotiation process, which can include harassment or putting any “undue pressure” on a party.

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